Garcia v. McDonald

MYNOR GARCIA, Petitioner,v.JOSEPH D. MCDONALD, in his capacity as Sheriff of Plymouth County House of Corrections, Respondent.

MEMORANDUM AND ORDER

ALLISON D. BURROUGHS U.S. DISTRICT COURT JUDGE

I.
Introduction

Currently
before the Court are three motions relating to Petitioner
Mynor Garcia's detention by United States Immigration and
Customs Enforcement (“ICE”) at the Plymouth
County House of Corrections. Mr. Garcia has filed an
emergency motion seeking the issuance of a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 ordering his release
from immigration detention [ECF No. 3] as well as a motion to
expedite the hearing of his habeas petition. [ECF No. 20].
Respondent[1] followed with a motion to dismiss for
failure to state a claim. [ECF No. 17].

Judge
Leo Sorokin, who was initially assigned to this case when it
was filed on August 16, 2016, conducted a motion hearing on
September 1, 2016, before the case was transferred to this
Court. This Court has reviewed the transcript of Judge
Sorokin's hearing and also held a further hearing and
conference with counsel for the parties on September 21,
2016.

For the
following reasons, Mr. Garcia's motion for the grant of a
writ of habeas corpus is ALLOWED IN PART and DENIED IN PART.
The Court declines to require the immediate release of Mr.
Garcia, but does order that Mr. Garcia be afforded a bond
hearing before an Immigration Judge as soon as reasonably
possible. Respondent's motion to dismiss for failure to
state a claim is DENIED and Petitioner's motion to
expedite is DENIED AS MOOT with leave to renew if
appropriate.

II.
Factual and Procedural Background

Mr.
Garcia is a citizen of Guatemala. He entered the United
States without inspection on or about February 2, 2002, at
the age of 17, and has remained in the United States since
that time. Mr. Garcia has previously worked as a mechanic and
for Market Basket. He has a son who is six years old, as well
as other family members in the area who support his release.
Mr. Garcia was arrested by the Lawrence police three times
from 2004 to 2006 for crimes including assault and battery,
leaving a scene after property damage, and threatening and
false license. Each of these cases was dismissed.

On
March 21, 2010, Mr. Garcia was violently attacked by members
of a gang in Lawrence, Massachusetts. He was kidnapped by
gang members, pushed down a flight of stairs, beaten with
brass knuckles, and burned repeatedly with an iron, before
being left for dead. He survived the attack and has been
cooperating with the Government in the investigation and
prosecution of members of the gang. Mr. Garcia's
cooperation with the Government continues to the present, and
he is a potential witness at a trial scheduled to begin later
this fall.

On July
28, 2011, Mr. Garcia was arrested for possession of cocaine
with intent to sell and possession of a firearm without an
FID card. He pled guilty to conspiracy to distribute cocaine
and possession with intent to distribute and received a
66-month sentence, which was completed on November 4, 2015.
On June 9, 2015, prior to the end of his criminal sentence,
Mr. Garcia was served by ICE with a Form I-851, Notice of
Intent to Issue a Final Administrative Removal. This led to
the entry of a final removal order against Mr. Garcia on June
15, 2015 based on his criminal history.

After
completing his sentence on November 4, 2015, Mr. Garcia
remained in detention until he was taken into ICE custody on
November 23, 2015. On November 25, 2015, Mr. Garcia told ICE
that he feared returning to Guatemala. The United States
Customs and Immigration Service (“USCIS”) then
interviewed Mr. Garcia and found that he did not have a
credible fear of returning to Guatemala.

On
December 14, 2015, Mr. Garcia was transferred, through a writ
of habeas corpus, to the physical custody of the United
States Marshals Service (“USMS”) in connection
with his ongoing cooperation with the gang-related
investigation and then returned to the custody of ICE on
March 8, 2016, where he has remained since. Despite the
change in the location of Mr. Garcia's confinement
between December 14, 2015 and March 8, 2016, it appears that
he remained in detention pursuant to ICE's immigration
detention authority or this Court has not been made aware of
any basis for his ongoing detention other than his
immigration status.

On
March 31, 2016, Mr. Garcia filed an application for a U visa.
According to USCIS, “[t]he U nonimmigrant status (U
visa) is set aside for victims of certain crimes who have
suffered mental or physical abuse and are helpful to law
enforcement or government officials in the investigation or
prosecution of criminal activity.” Mr. Garcia appears
to at least facially meet this criteria given that he was a
victim of a violent crime and is assisting the government
with a related investigation. A U visa requires a
certification from a government officer that the applicant
provided assistance to the government. In Mr. Garcia's
case, United States Attorney Carmen Ortiz signed his U visa
application personally. According to the U.S. Attorney's
Office certification, “Mr. Garcia was extremely helpful
in assisting the FBI to identify and target members of an
organized kidnapping crew in Lawrence, MA” and
“[t]he government prosecuted over 20 members of this
gang.”

In May
2016, USCIS denied Mr. Garcia's application for relief
from removal based on fear of returning to Guatemala and
referred him to an Immigration Judge for further proceedings.
The Immigration Judge then overturned the previous
determination that Mr. Garcia did not have a credible fear of
returning to Guatemala and held that Mr. Garcia's fear of
return was credible. As a result of this finding, Mr. Garcia
was placed in withholding of removal proceedings.

According
to Mr. Garcia, he was denied a bond hearing by the
Immigration Judge on June 3, 2016. The Government responds
that the Immigration Judge requested briefing on whether bond
was appropriate on June 15, 2016, but that such briefing was
not submitted. In any event, Mr. Garcia was scheduled for a
merits hearing on his withholding of removal petition before
Immigration Judge Paul Gagnon on September 14, 2016, but this
date was rescheduled by Judge Gagnon and a new date has not
yet been confirmed. Counsel for Mr. Garcia also ...

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